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: Law at the End of the Day

Internationalism at its Limit, Nationalist Prerogative Tested--Liu Xiaobo and the Nobel Peace Prize

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China and the West have been having increasingly more complex and frustrating conversations since the turn of the current century. There are many reasons for the complexity and frustration. The recent award of the Nobel Peace Prize to Liu Xiaobo illustrates a particularly difficult aspect of these conversations.

From Nobelprize.org.

For Europe, the award serves as a reaffirmation of its assumptions about the way in which global society must be organized and the objectives towards which all global political organs must contribute. That vision is internationalist and grounded in the understanding of human organization in a set of consensus derived universal (or at least communally binding) substantive values principles that must necessarily limit and inform the actions of any one state in the organization of its government and in the substantive principles that limit its discretion to define the rights and powers of a government toward its citizens. These are the fundamental assumptions at the heart of transnational constitutionalism. See Larry Catá Backer, . These notions also are critical for the construction of aa system of states organized within an increasingly coercive transnational system of norm production first organized in its current form with the establishment of the United Nations.

The recent efforts of Thorbjorn Jagland, the Chair of the Norwegian Nobel Committee, provides an excellent summary and application of these views:

THE Chinese authorities? condemnation of the Nobel committee?s selection of Liu Xiaobo, the jailed political activist, as the winner of the 2010 Peace Prize inadvertently illustrates why human rights are worth defending.

The authorities assert that no one has the right to interfere in China?s internal affairs. But they are wrong: international human rights law and standards are above the nation-state, and the world community has a duty to ensure they are respected.

The modern state system evolved from the idea of national sovereignty established by the Peace of Westphalia in 1648. At the time, sovereignty was assumed to be embodied in an autocratic ruler.

But ideas about sovereignty have changed over time. The American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen replaced the control of the autocrat with the sovereignty of the people as the source of national power and legitimacy.

The idea of sovereignty changed again during the last century, as the world moved from nationalism to internationalism. The United Nations, founded in the wake of two disastrous world wars, committed member states to resolve disputes by peaceful means and defined the fundamental rights of all people in the Universal Declaration of Human Rights. The nation-state, the declaration said, would no longer have ultimate, unlimited power.

Today, universal human rights provide a check on arbitrary majorities around the world, whether they are democracies or not. A majority in a parliament cannot decide to harm the rights of a minority, nor vote for laws that undermine human rights. And even though China is not a constitutional democracy, it is a member of the United Nations, and it has amended its Constitution to comply with the Declaration of Human Rights.

However, Mr. Liu?s imprisonment is clear proof that China?s criminal law is not in line with its Constitution. He was convicted of ?spreading rumors or slander or any other means to subvert the state power or overthrow the socialist system.? But in a world community based on universal human rights, it is not a government?s task to stamp out opinions and rumors. Governments are obliged to ensure the right to free expression ? even if the speaker advocates a different social system.

These are rights that the Nobel committee has long upheld by honoring those who struggle to protect them with the Peace Prize, including Andrei Sakharov for his struggle against human rights abuses in the Soviet Union, and the Rev. Dr. Martin Luther King Jr. for his fight for civil rights in the United States.

Not surprisingly, the Chinese government has harshly criticized the award, claiming that the Nobel committee unlawfully interfered with its internal affairs and humiliated it in the eyes of the international public. On the contrary, China should be proud that it has become powerful enough to be the subject of debate and criticism.

Interestingly, the Chinese government is not the only one to criticize the Nobel committee. Some people have said that giving the prize to Mr. Liu may actually worsen conditions for human-rights advocates in China.

But this argument is illogical: it leads to the conclusion that we best promote human rights by keeping quiet. If we keep quiet about China, who will be the next country to claim its right to silence and non-interference? This approach would put us on a path toward undermining the Universal Declaration and the basic tenets of human rights. We must not and cannot keep quiet. No country has a right to ignore its international obligations.

China has every reason to be proud of what it has achieved in the last 20 years. We want to see that progress continue, and that is why we awarded the Peace Prize to Mr. Liu. If China is to advance in harmony with other countries and become a key partner in upholding the values of the world community, it must first grant freedom of expression to all its citizens.

It is a tragedy that a man is being imprisoned for 11 years merely because he expressed his opinion. If we are to move toward the fraternity of nations of which Alfred Nobel spoke, then universal human rights must be our touchstone. Thorbjorn Jagland, Why We Gave Liu Xiaobo a Nobel, New York Times, Oct. 23, 2010.

For China nothing could be more alien. Chinese elites have not had the luxury of full membership in the Family of Nations for many centuries, nor has the current government been generally recognized as the legitimate organ of the state until very recently. Many of the current leadership, including tastemakers, academics and others, are the children of those who remember efforts to dismember China for the benefit of others. All of this was done quite lawfully (loosely understood in the context of international law, perhaps better understood as legitimately) using the very framework of international law that the Nobel Committee now deploys. It is true enough that the Nobel Committee references international law and international norm frameworks revolutionized by the development and institutionalization of post 1945 international institutions. But that is a subtle distinction to make where the effects of the application of international law feel like those of an earlier era.

This creates something of a tension within Chinese intellectual and political culture circles. It is a tension that will require resolution--and sooner rather than later. But it is a tension nonetheless rooted in the history of China and its self understanding within the international community. What for Norwegians are efforts to implement the new global consensus on shared norms, the Chinese continue to understand as efforts to project European power on uncivilized and therefore second class states within the Family of Nations. For the traditional view before 1945, see, e.g., Pollock, The Sources of International Law, 2 Colum. L. Rev. 511, 512 (1902); Westel Willoughby, The Fundamental Concepts of Public Law (New York: MacMillan, 1924). That is both threatening and insulting within the conceptual universe within which news of the announcement of the Nobel Peace Prize are received.

A recent explanation of that tension in the context of the Nobel Award by Xiangfeng Yang provides an excellent window into these tensions from the Chinese perspective:

For many years after market reform started in the early 1980s, the people and government of the People?s Republic waited impatiently for their first Nobel Prize to glorify their scientific and literary advancements. But the Nobel they wanted never came, and the Nobel Prize that came is not wanted ? at least, not by the government. Twenty-one years after the Dalai Lama was awarded the Nobel Peace Prize, the Norwegian Nobel Committee announced this month that Liu Xiaobo was this year?s winner. Beijing officials reacted in a familiar and angry manner, denouncing the decision as a desecration of the Nobel spirit and putting human rights activists and China?s cyberspace under even tighter surveillance.

. . . . .

A remarkable man, Liu indisputably deserves the prize for his ceaseless struggle. for nonviolent democratic reform over the past two decades. His winning of the prize adds pressure on Beijing to stop its human rights violations. While I believe the combination of domestic and international pressure will eventually result in more political openness and respect for basic human rights, the democratic future of the People?s Republic resides in its people alone: they will have to want democracy, believe in democracy and act to advance democracy. Towards this goal, democracy advocates like Liu play an indispensable role by providing an impelling and practical vision of how a democratic polity will not impede, but advance, prosperity and stability in China. Critically, however, they must also demonstrate their patriotic bona fides, which naturally extend to some fundamental concerns about national sovereignty and territorial integrity with regard to Tibet and Taiwan.

In today?s China, having foreign associations can create doubts about a person?s devotion to his or her country ? a fact I am acutely aware of after being asked many times by my friends and family to reaffirm my loyalties. Such suspicion stems from the nation?s painful experience with Western and Japanese imperialism, which is frequently played up by the regime to shore up its legitimacy. True, the Communist Party itself relied heavily on Soviet assistance for decades, but their path to power is also stained with blood and violence. However, today?s democracy advocates, having no other choice but to resort to persuasion and activism, cannot ignore the charge that they are more beholden to their international supporters than to their own people.

In this age of global connectedness, who is free of foreign influence? . . . . The notion of zhong ti xi yong (Chinese learning as the essence and Western learning for its usefulness) was popularised in the late 19th century, yet when it is promoted or sponsored by foreign organisations or governments, it takes on a different meaning and can have dangerous implications for those who advance it.

Liu has been accused by the government and even some prodemocracy intellectuals of championing wholesale Westernisation in 1988 and refusing to back down from it. His alleged support for the Iraq war under the George W. Bush administration sent out another wrong message that, if amplified and extrapolated, might weaken the cause of democracy in the eyes of ordinary Chinese people.
Exiled, jailed or under vigilant watch by the government, many Chinese activists are forced to look overseas for information, platforms, funds and other resources. This dilemma adds to the difficulties of
performing a balancing act between shortterm needs and a long-term perspective. . . . .
There is a lesson here for foreign governments and international organisations as well. The road to China?s democratisation promises to be tortuous and long, and their continued support is important in encouraging democracyloving Chinese. But such support should be strictly limited to the moral and diplomatic levels, or take shape ? through official channels ? in specific programmes or projects aimed at enhancing good governance, rights protection, judicial reform, and so forth. The Norwegian Nobel Committee may have done the right thing in putting the awful state of human rights in China under an international spotlight, but ultimately the prize will best serve its purpose if left unclaimed. Xiangfeng Yang, The Bigger Prize, South China Morning Post, Oct. 28, 2010.

None of this is meant to serve as an apologia for Chinese actions on the global stage. Nor is this meant to suggest acquiescence in Chinese exceptionalism. Likewise this discussion is not meant to serve as a paean to modern legal formalist internationalism. Nor does any of this suggest the inevitability of Norwegian sensibilities in the construction of an integrated global community. Indeed, certain influential elements in the United States continue to be as skeptical as the Chinese of the Norwegian internationalist perspective. Yet China (and the United states for that matter), like other great powers, are participants in the emerging international system, gladly or reluctantly. They all profit from its harmonization of many aspects of human interaction, and in a subsidiary and more tentative way, of values. Yet the reaction to and defense of the Nobel ward, like two rhetorical ships passing in the night, suggest some of the difficulties of communication across a vast cultural and historical divide, the bridging of which will require forbearance and sensitivity on both sides if both sides mean to interact in meaningful ways. And it suggests the continuing contests for control of the basic normative structure for the emerging world order. Values matter, and the stakes are high, indeed. See, e.g., Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008.

Full post as published by Law at the End of the Day on October 28, 2010 (boomark / email).

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